Section 8(2) DSE Act Mandates Prior DOE Approval for Termination in Unaided Private Schools (Retrospective Application) and Requires Fresh, Unbiased Disciplinary Adjudication
1. Introduction
The Delhi High Court (Division Bench: C. Hari Shankar, J. and Om Prakash Shukla, J.) decided two connected Letters Patent Appeals filed by
Rekha Sabharwal, both arising from judgments of a learned Single Judge dated 6 February 2017.
Although involving the same parties and decided on the same day, the appeals concerned distinct disputes.
In LPA 266/2017, the appellant (an Assistant Teacher in Saai Memorial Girls School, a private unaided school) challenged her removal
pursuant to a disciplinary enquiry initiated by charge-sheet dated 16 October 2006. The core questions were:
- Whether removal could be ordered without prior approval of the Director of Education under Section 8(2) of the Delhi School Education Act, 1973 (“DSE Act”), even for a private unaided school.
- Whether the disciplinary process was vitiated by bias (complainants/witnesses being part of the disciplinary authority), and by the absence of a reasoned punishment order.
- What relief should follow if the termination is jurisdictionally invalid.
In LPA 268/2017, the appellant alleged illegal “salary clawback” (salary paid by cheque but partly taken back in cash), which the Single Judge
rejected as involving disputed facts unsuited to writ adjudication.
2. Summary of the Judgment
2.1 LPA 266/2017 (Termination/disciplinary proceedings)
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The Court held that termination/removal in a recognised private school—including an unaided school—requires
prior approval of the Director of Education under Section 8(2) DSE Act.
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The Court reaffirmed that the Supreme Court’s ruling in Raj Kumar v. Director Of Education applies
retrospectively (unless the Supreme Court itself limits it), and that any contrary “prospective only” approach is untenable.
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On bias, the Court accepted that including alleged victims/complainants as members of the disciplinary authority violates
nemo judex in causa sua (no one may be a judge in their own cause).
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The Court found the punishment order to be completely unreasoned and emphasized the need for a reasoned, speaking decision,
and an opportunity of hearing before the disciplinary authority.
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Relief: the Court quashed the Single Judge’s decision, the Tribunal’s order, and the enquiry outcomes; ordered
reinstatement with continuity and 50% back wages (subject to an affidavit of no gainful employment),
and directed a de novo enquiry by an independent inquiry officer with strict compliance with Section 8(2) for any future penalty.
2.2 LPA 268/2017 (Salary clawback allegation)
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The Court dismissed the appeal, agreeing with the Single Judge that the claim involved disputed questions of fact not fit for resolution
under Article 226, especially where salary was shown paid by cheque against signatures and no other teacher supported the allegation.
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The Court cautioned that such practices (if proven) are illegal and may entail civil/criminal liability, but proof must be led in an appropriate forum.
3. Analysis
3.1 The central statutory holding: Section 8(2) applies to unaided private schools
Section 8(2) DSE Act provides that no employee of a recognised private school shall be dismissed/removed/reduced in rank or otherwise terminated
except with prior approval of the Director. The Management relied on earlier Delhi High Court authority to argue that unaided schools were exempt.
The Division Bench rejected that position as contrary to binding Supreme Court precedent.
3.2 Precedents cited and how they shaped the decision
(a) Kathuria Public School v. Director Of Education & Anr of Education (123 (2005) DLT 89 (DB))
The termination order expressly claimed compliance with Kathuria Public School, which had held that Section 8(2) did not apply to private unaided schools.
The Division Bench treated this as the historical basis for management action—but not as good law after Supreme Court correction.
This is the doctrinal pivot. The Supreme Court held Kathuria Public School to have been wrongly decided, thereby bringing unaided recognised schools
within Section 8(2)’s “prior approval” control. The High Court treated Raj Kumar as binding under Article 141 and determinative of jurisdiction.
(c) Marwari Balika Vidyalaya v. Asha Srivastava (2019 SCC OnLine SC 408)
The Court relied on Marwari Balika Vidyalaya to answer the crucial temporal question: whether Raj Kumar applies to older terminations.
The Supreme Court applied Raj Kumar retrospectively to invalidate a 2001 termination lacking prior approval—demonstrating that the law declared in
Raj Kumar was treated as the law “as it always stood.”
(d) Red Roses Public School v. Reshmawati (2019 SCC OnLIne Del 10937)
Red Roses Public School had observed, in passing, that Raj Kumar should be prospective to avoid reopening settled cases.
The present Bench rejected that approach on two levels:
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Hierarchy rule: a High Court cannot declare a Supreme Court judgment to be prospective unless the Supreme Court itself so states.
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Per incuriam reasoning: as already held in Asha Rani Gupta v. Ravindera Memorial Public School (2024 SCC OnLine Del 7143),
Red Roses Public School did not consider Marwari Balika Vidyalaya, which had already applied Raj Kumar retrospectively.
The Bench cited Meena Oberoi v. Cambridge Foundation School as a Delhi High Court application of Raj Kumar and Marwari Balika Vidyalaya:
termination in unaided private schools requires prior approval under Section 8(2). The present decision aligns with and reinforces that line.
The Bench treated Asha Rani Gupta as an authoritative consolidation of the “precedential history” and explicitly reiterated its holding that
the “prospective only” suggestion in Red Roses Public School is per incuriam in view of Marwari Balika Vidyalaya.
This case thus functions as both a reliance point and a reaffirmation of the Division Bench’s own jurisprudence.
(g) Surendra Kumar Verma v. Central Govt Industrial Tribunal ((1980) 4 SCC 443)
On relief, the Management argued that even if termination was set aside, reinstatement need not follow. The Bench invoked
Surendra Kumar Verma to underscore the general rule: setting aside termination ordinarily leads to reinstatement (status quo ante),
absent supervening factors such as gainful alternative employment.
(h) Managing Committee Vidya Bhawan Mahavidyalaya v. Directorate of Education (ILR (2006) 1 Delhi 403 (DB))
This precedent was discussed in the Single Judge’s reasoning on a related fairness point: a person should not “double up” as complainant and witness.
While the present Bench ultimately ordered a de novo enquiry for broader reasons, it accepted the deeper fairness concern that decision-makers must be free
from roles that generate a reasonable apprehension of bias.
(i) Mangal Sain Jain v. Principal, Balvantray Mehta Vidya Bhawan (2020 SCC OnLine Del 2608)
Cited to show consistent Delhi High Court application of Meena Oberoi / Raj Kumar principles requiring prior approval under Section 8(2).
3.3 Legal reasoning: three interlocking pillars
Pillar 1: Jurisdictional illegality (Section 8(2) prior approval)
The Court treated Section 8(2) as a jurisdictional condition precedent. Without prior approval, the termination order is ultra vires and must fall.
The Court allowed this point even though it was not pressed before the Single Judge because it was “jurisdictional” and did not require disputed fact-finding.
Pillar 2: Retrospectivity of Supreme Court declarations of law
The Bench reaffirmed a foundational public law principle: Supreme Court rulings under Article 141 declare the law as it always stood,
unless expressly made prospective by the Supreme Court. Since Raj Kumar did not limit itself prospectively—and Marwari Balika Vidyalaya
applied it to earlier terminations—the High Court refused to carve out a “past cases are protected” exception.
Pillar 3: Fair adjudication—bias control and reasoned decision-making
Even beyond Section 8(2), the Court identified systemic defects:
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Nemo judex in causa sua: where disciplinary authority includes persons who are complainants/victims/witnesses on the very charges,
the process carries a reasonable apprehension of bias and cannot be sustained.
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Speaking order requirement: the punishment order was “completely unreasoned.” Once an employee responds to a show cause notice,
the disciplinary authority must deal with the response and apply its mind, preferably after hearing. The Court required the future decision to be
reasoned, speaking, and proportionate.
3.4 Remedy design: reinstatement + partial back wages + de novo enquiry
The judgment is notable for combining status-restorative relief with process-corrective directions:
- Reinstatement with continuity and pay fixation as if uninterrupted (or retiral benefits if superannuated).
- 50% back wages, conditioned on an affidavit of no gainful employment (balancing equity while correcting illegality).
- De novo enquiry with an “entirely independent” inquiry officer and a properly constituted disciplinary authority.
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If any major penalty under Section 8(2) is proposed, prior DOE approval must be obtained.
This converts Section 8(2) from a litigated proposition into an operational compliance mandate.
3.5 Likely impact
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Compliance recalibration for unaided schools: the decision reinforces that unaided status does not dilute Section 8(2) safeguards;
managements must build prior-approval timelines into disciplinary workflows.
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Retrospective vulnerability of past terminations: terminations historically issued without DOE approval (relying on Kathuria Public School)
remain legally susceptible post-Raj Kumar/Marwari Balika Vidyalaya, subject to limitation/maintainability issues in individual cases.
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Sharper procedural standards: bias-free constitution of disciplinary authorities, speaking orders on show cause, and hearing before final penalty
are emphasized as non-negotiable features of lawful disciplinary action.
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Writ discipline in factual disputes (from LPA 268/2017): allegations like salary clawback, though serious, require proof in appropriate fora;
Article 226 will not be converted into a trial on contested facts without conclusive material.
4. Complex Concepts Simplified
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Section 8(2) “prior approval”: before terminating/removing/reducing rank, the school must obtain written approval from the Director of Education.
Without it, the termination is legally invalid.
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Retrospective application of judgments: courts generally treat a higher court’s declaration of law as stating what the law has always been,
unless the higher court expressly limits the ruling to future cases.
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Per incuriam: a decision is “per incuriam” when it is rendered in ignorance of a binding precedent; its persuasive force is diminished.
Here, Red Roses Public School v. Reshmawati was treated as per incuriam to the extent it suggested prospectivity, because it overlooked
Marwari Balika Vidyalaya v. Asha Srivastava.
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Nemo judex in causa sua: a person who has a personal stake (e.g., complainant/victim/witness) should not sit in judgment as part of the decision-making body.
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Speaking order: an order must give reasons—addressing the employee’s defence and showing application of mind—especially after a show cause reply.
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De novo enquiry: the disciplinary process starts afresh, curing procedural defects (bias, unfairness), rather than trying to patch up a tainted process.
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Disputed questions of fact in writ jurisdiction: writ courts typically avoid deciding contested factual allegations requiring oral evidence and cross-examination.
5. Conclusion
The Delhi High Court’s decision delivers a clear compliance rule for school service law in Delhi:
prior approval under Section 8(2) DSE Act is mandatory even for private unaided schools, and Supreme Court clarification in
Raj Kumar v. Director Of Education operates retrospectively as confirmed by Marwari Balika Vidyalaya v. Asha Srivastava.
It further strengthens procedural fairness by insisting on a bias-free disciplinary authority, a hearing, proportionality review, and reasoned speaking orders.
In parallel, the Court preserves doctrinal limits of writ adjudication by refusing, in the salary-clawback appeal, to decide contested factual claims
lacking conclusive proof—while acknowledging the illegality of such practices if proven.